Keep out! Judge should mind his own business

Thursday

Jul 26, 2012 at 12:01 AMJul 26, 2012 at 6:00 AM

By SIMON CAMPBELL

There is nothing more frustrating than hearing young people say how we live in a democracy in the United States. No we do not! Nobody in this country pledges allegiance to the democracy of the United States. We pledge allegiance to the Republic of the United States and for good reason — we live in a constitutional republic, not a democracy.

The Founding Fathers were wise beyond their time. The framers of the Constitution understood that the legislative, executive and judicial branches of government all served to balance each other. No branch of government was to be deemed superior to another.

In a democracy all power is inherent in the legislative branch of government. In a constitutional republic all power is inherent in the people. In a democracy, such as the United Kingdom, if the legislative branch passed a law to ban free speech then such action would become the law. In the United States, if Congress passed such a law then Congress would get sued and our courts would rule that Congress acted outside of its allowable authority under the Constitution.

The Judicial branch in a constitutional republic is charged with enforcing the law and that the Constitution is the supreme law of the law. However, the judicial branch is not superior to the legislative branch, i.e., the judicial branch is not supposed to create law where none exists. If it happens we call it “judicial activism” and judicial activism is as dangerous as unconstitutional legislative action.

Witness the recent decision of Bucks County Common Pleas Judge Robert Baldi in the contract dispute between the Neshaminy teachers union and the Neshaminy School Board. Judge Baldi correctly ruled that he was not going to order round-the-clock negotiating between the two sides, but he left the door open to such an idea in the future. I contend he was wrong to leave the door open. What am I talking about? The Pennsylvania state law that governs collective bargaining for our schools is actually two laws: Act 195 of 1970 and Act 88 of 1992. Nothing in these laws authorizes the judiciary to dictate “how” bargaining should take place.

The public elects school board directors to engage in good faith collective bargaining. How those local legislative officials do it is up to them. Who sits on their negotiating team is up to them. If the public doesn’t like how they’re doing it, the public can vote them out of office. But nobody elected any judge to dictate the process of negotiating.

When Judge Baldi hints that he might get involved he is hinting at the judiciary becoming active in a legislative function. That idea raises serious constitutional questions. It is true that other county courts have in the past become involved in such a way. However, that doesn’t mean that a particular legislative body would be prohibited from challenging a county judge’s ruling in federal court.

I suggest that Neshaminy immediately change its negotiating team’s structure to only have their lawyer do the actual negotiating. If the union doesn’t like this exercise of managerial rights then file another unfair labor charge against the union; because neither side has any right to dictate who sits on the other side’s negotiating team. Judge Baldi would then have to face a decision as to whether he felt he could dictate the school board’s negotiating team structure when the fact is that nothing in law grants such power to the judiciary.

The union wants court-ordered negotiating to wear down volunteer school board directors and beat them into submission. But the best work Judge Baldi can perform for Neshaminy is none. To reject union demands for court-ordered bargaining and say: “I am not authorized to perform such a legislative function.”

A few hundred years ago some very wise men, who created separate but equal branches of government, would expect judicial restraint by Judge Baldi. If the current collective bargaining law doesn’t work, the state Legislature should change it. Not our courts. Welcome to the United States of America.

Simon Campbell, Lower Makefield, is vice president of the Pennsbury School Board.

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